- Astute Mode Limited with its registered office at Ground Floor, 22 Papanui Road, Merivale, Christchurch (“AML”)
- The Client (“the Client”)
These Terms of Business and the Engagement Letter set out the terms on which AML will provide the Services to the Client.
3:: This Agreement
a – AML agrees to provide the Services to the Client on the terms of this Agreement.
b – The Client will be deemed to have accepted this Agreement if the Client continues to instruct AML after receiving the Engagement Letter and these Terms of Business.
- In the Terms of Business and the Engagement Letter the following words have the meaning set out below:
- i) Agreement – means the Engagement Letter and these Terms of Business;
- ii) Commencement Date – means the date defined as the Commencement Date in the Engagement Letter.
iii) Contractor – means a contractor engaged by AML to undertake some or all of the services specified in the Engagement Letter.
- iv) Client – means the Client as specified in the Engagement Letter.
- v) Fees – means the fee specified in the Engagement Letter;
- vi) Letter – means the Engagement Letter;
vii) Services – means the services specified in the Engagement Letter.
- This Agreement commences on the Commencement Date and continues until it is terminated in accordance with the provisions of the Engagement Letter.
6:: Provision of Information
- If any of the Services AML provide for the Client requires the Client or a third party to provide AML with information, then AML will rely on the accuracy of this information, unless it is agreed that AML will check the information’s accuracy as part of the provision of the Services.
- Where the provision of the Services is delayed by the delay in the provision of information by the Client or a third party beyond AML’s control, then AML will not be responsible for this delay in the provision of the Services.
- All information acquired by AML under this Agreement will be treated as confidential by AML and will not be disclosed in whole or in part to any third person without the prior written consent of the Client, except:
- i) to the extent required to be disclosed by law;
- ii) where such information becomes part of the public domain;
iii) where it is reasonably required for the purpose of review by any adviser or consultant, retained by AML;
- iv) where it is necessary to enable a Contractor engaged by AML to contribute to the completion the Services, where such disclosure is necessary AML shall require their Contractor to enter into an equivalent non-disclosure provision.
8:: Intellectual Property
- The parties agree that they will each retain any intellectual property rights owned prior to the commencement of this Agreement.
- Unless otherwise agreed, AML will retain ownership of any intellectual property rights created during the performance of the Services, except the intellectual property rights in any product that is delivered to the Client as part of the provision of the Services.
- Either party may terminate this Agreement immediately if the other becomes unable to pay its debts as they fall due or otherwise ceases to carry on business or commits any material breach of this Agreement that is incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be remedied.
- AML may terminate this Agreement if:
- i) the Client fails to meet their obligations under this Agreement including to pay AML’s fees within the time specified or to provide AML with adequate information or instructions; or
- ii) there is a change in circumstances beyond AML’s reasonable control that prevents AML providing the Services to the Client.
- If this Agreement is terminated:
- i) the Client agrees to pay the Fees for any of the Services performed and any expenses AML has incurred up to the date of termination;
- ii) each party will return to the other any documents or property of the other that it has.
- Where the Services AML undertakes for the Client includes the provision of advice of any kind, then the Client agrees that this advice will only to be used by the Client and not any third party and that such advice will only be used for the purpose that such advice was sought.
- AML shall invoice the Client weekly in arrears for the Fees (unless agreed otherwise) and the Client agrees to pay within 7 days of the date of such invoice. The Client agrees to pay the undisputed portions of an invoice even if there is a dispute between the parties about that invoice or another invoice.
- The Fees are exclusive of GST and of any other government imposed taxes and levies (unless otherwise stated).
- AML shall charge the Client at cost for any expenses AML incurs in providing the Services.
- No payment shall be withheld or reduced by virtue of alleged setoff, counterclaim or otherwise.
- Interest shall be paid at 2.5% per month calculated on a monthly basis on all outstanding amounts from the date on which payment was due until the actual date of payment.
- The Client will pay all costs and expenses incurred by AML, including own solicitor/client costs, to recover any outstanding fees and disbursements from the client.
- Without limiting any of AML’s other rights, AML is entitled to suspend or terminate the Services, in whole or in part, or to retain or withhold any information AML may hold in relation to the Services if any invoice is not paid on time
12:: AML’s Liability
- The Client agrees that AML shall not be liable whether by way of indemnity, guarantee, or by reason of any breach of contract, or of statutory duty or by reason of tort (including but not limited to negligence) or any other legal principle or doctrine for any loss of profits, loss of use, loss of revenue or loss of anticipated savings or for any financial or economic loss (whether direct or indirect) or for any consequential or indirect loss or damage whatsoever.
- If, despite clause 10.1, AML is liable to the Client, then its total aggregate liability to the Client arising under or in connection with this Agreement or any breach or non-performance of it (including by reason of AML’s negligence) in contract, tort, under any indemnity or otherwise shall be limited to a sum equivalent to the Fees paid for the Services provided to the Client in the preceding 1 month period.
- Where the Services that AML provides for the Client includes advising the Client to use, in any way, a service supplied by a third party, including software as a service products such as Xero, then AML accepts no responsibility for the use of this service.
13:: Dispute Resolution
- If there is a dispute (“the Dispute”) between the parties arising out of, or in connection with, this Agreement, then the following procedure will be complied with:
- i) A party to this Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
- ii) The party claiming the Dispute has arisen under or in relation to this Agreement must notify the other party as to the nature of the Dispute.
iii) On receipt of that notice both parties must endeavour in good faith to promptly resolve the Dispute.
- iv) If the Dispute is not resolved within 14 days of receiving notice of the Dispute, the parties must mediate the Dispute in accordance with the procedures of LEADR New Zealand, and the Chair of the New Zealand Chapter of LEADR (or the Chair’s nominee) will select the mediator and determine the mediator’s remuneration (which shall be paid equally by each party).
- v) If a binding agreement has not been reached as a result of that mediation process, the Dispute shall be referred to a single arbitrator, which the parties will agree upon one within seven (7) days of the completion of the foregoing mediation. Failing agreement on an arbitrator, the arbitrator shall be a person appointed on application of any party by the then President of the Canterbury Branch of the New Zealand Law Society or their nominee. Such arbitration shall be completed in accordance with and subject to the provisions of the Arbitration Act 1996. The decision of the arbitrator (including any decision as to which party shall bear the costs of the arbitration) shall be final and binding on the parties.
- vi) The parties agree that pending the final resolution of any dispute hereunder, neither of them shall make any press release, public announcement or statement concerning the subject matter of the dispute to any person or organisation.
14:: Force Majeure
- Notwithstanding any other provisions of this Agreement, neither party will be liable to the other for any breach or failure to perform its obligations under this Agreement where such breach or failure is caused by a natural disaster, national emergency, act of god, strike, lock-out, riot, industrial action, operation of law or other cause beyond that party’s control provided that if either party is, or is likely to be affected by such cause, it shall immediately notify the other party of the occurrence of the relevant event and will use all reasonable endeavours to overcome or mitigate the effects thereof.
- If any provision of this Agreement is declared by a judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, or indications to that effect are received by either of the parties from any competent authority, that provision will be severed from this Agreement and the remaining provisions of this Agreement will remain in full force and effect unless AML decides that the effect of such severance is to defeat the original intention of the parties in which event AML will be entitled to terminate this Agreement by thirty (30) days’ notice.
16:: Whole Agreement
- Each party acknowledges that this Agreement contains the whole agreement between the parties in relation to the subject matter of their dealings and that the Agreement supersedes any prior agreements or representation, which are cancelled as at the Commencement Date.
- Each party acknowledges that it has not relied upon any oral or written representation made to it by the other party, its employees or any other party, and has made its own independent investigations into all matters relevant to the subject matter of their dealings.
- Where there is any inconsistency between the Letter and these Terms of Business, the Letter will prevail.
18:: Warranties by the Parties
- Each of the parties warrants that it has the power to enter into this Agreement and has obtained all necessary resolutions and approvals to do so.
- AML is engaged as an independent contractor. Neither party is the agent or representative of or has the authority to bind the other.
- This Agreement is not intended and will not be taken to constitute a partnership, agency, employment, joint venture or fiduciary relationship between the parties.
- Neither party may transfer, assign or novate this Agreement without the prior written consent of the other, but the Client acknowledges that AML may use contractors to perform the Services.
21:: Proper Law and Jurisdiction
- This Agreement is governed by and construed with reference to the laws for the time being in force in New Zealand. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New Zealand.
The failure by AML to enforce at any time or for any period any one or more of the terms or conditions of this Agreement is not a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.